New member preparing to file... I-94 question...

[DavidC 1]

I'm new to this forum so here's a little background before I ask a few questions...

I'm Canadian and i've been living in the USA for the past 3 and half years, in September 2008 my wife and I were married (in the USA, she's an American citizen). I've been to and back from Canada many times since for a little over a year we lived in Vermont 2 miles away from the border.

We've been married for over a year now and I still haven't started the whole process towards getting my AOS since it seemed overwhelming at first and we've been trying to save money for a lawyer. Finances aren't great at the moment since obviously i'm unable to work a regular job in the USA, so we've decided that instead of spending a fortune on a lawyer we would jump head first and figure out how to go through this process ourselves (this forum seems like a great resource), I plan on being able to work as soon as possible.

My plans are to file the I-130 and the I-485 at the same time with everything else that's required, i'm following this checklist.. http://www.visajourney.com/forums/index.ph...page=i130guide2

Everything is great until I reach the point where I see this .. Copy of the non US Citizen Spouses valid I-94 (front and back copies) ... At the Canadian borders I was never given an I-94 or even ever told about it, is this something that's absolutely required? If so, how do I go about getting one right now?

Thank you for any help you can provide, if there's any advice you can give me please help!

Edited January 14, 2010 by DavidC

[HeatDeath 430]

I'm new to this forum so here's a little background before I ask a few questions...

I'm Canadian and i've been living in the USA for the past 3 and half years, in September 2008 my wife and I were married (in the USA, she's an American citizen). I've been to and back from Canada many times since for a little over a year we lived in Vermont 2 miles away from the border.

We've been married for over a year now and I still haven't started the whole process towards getting my AOS since it seemed overwhelming at first and we've been trying to save money for a lawyer. Finances aren't great at the moment since obviously i'm unable to work a regular job in the USA, so we've decided that instead of spending a fortune on a lawyer we would jump head first and figure out how to go through this process ourselves (this forum seems like a great resource), I plan on being able to work as soon as possible.

My plans are to file the I-130 and the I-485 at the same time with everything else that's required, i'm following this checklist.. http://www.visajourney.com/forums/index.ph...page=i130guide2

Everything is great until I reach the point where I see this .. Copy of the non US Citizen Spouses valid I-94 (front and back copies) ... At the Canadian borders I was never given an I-94 or even ever told about it, is this something that's absolutely required? If so, how do I go about getting one right now?

Thank you for any help you can provide, if there's any advice you can give me please help!

Canadians don't get an I-94 unless they enter on some sort of visa. When you enter the US as a Canadian citizen, and allow CBP to assume that you're just in on a day trip or short vacation and intend to return to Canada within (max) a few months, they don't stamp your passport or give you an I-94, but you are effectively in the country on an informally granted B-2 tourist visa.

If you recall, on the time you entered the US immediately prior to your wedding, what, if anything did you tell CBP? Did you give them any reason to think you were intending to stay in the US? Had you obtained a visa of any kind prior to that?

You see, you may have made life very difficult for yourself. Entering the US on a tourist visa, when you are the spouse of a US citizen and intending to adjust status, may be seen as material misrepresentation. This could make adjusting status very difficult.

[DavidC 1]

Canadians don't get an I-94 unless they enter on some sort of visa. When you enter the US as a Canadian citizen, and allow CBP to assume that you're just in on a day trip or short vacation and intend to return to Canada within (max) a few months, they don't stamp your passport or give you an I-94, but you are effectively in the country on an informally granted B-2 tourist visa.

If you recall, on the time you entered the US immediately prior to your wedding, what, if anything did you tell CBP? Did you give them any reason to think you were intending to stay in the US? Had you obtained a visa of any kind prior to that?

You see, you may have made life very difficult for yourself. Entering the US on a tourist visa, when you are the spouse of a US citizen and intending to adjust status, may be seen as material misrepresentation. This could make adjusting status very difficult.

When I entered before my wedding I didn't let them know that I intended on staying in the US and I didn't have any sort of visa, I just crossed over like I had done many times. In retrospect I obviously should have looked into what should have properly been done before I married an American but I didn't (idiot!). I understand how on paper this could be seen as material misrepresentation, however living close to the border and having crossed many times in my life without needing much paperwork (until recently a passport) I just figured it didn't matter how I entered the US to go marry a woman i'm in love with.

Do I need to provide some sort of substitute for the I-94 or do I file without it? I do want to do everything right but now it seems like without knowing i've already doomed myself ...

[HeatDeath 430]

This is a little outside my direct area of experience, so what you really want to be doing is searching this forum and reading anything relating to adjusting from a tourist visa.

Lots of people successfully adjust from a tourist visa. They come here on a tourist visa, having no intent to stay at the time they cross the border. They marry, and adjust status. As long as they had no intention of staying here permanently at the time they crossed the border, that's all fine. What complicates your situation immensely is the fact that you've been back and forth over the border a significant number of times since you got married, and that you had intent to stay at each time. What will count to USCIS, in terms of adjusting status, was your intention at the time of the most recent border crossing. If, at that time, you crossed the border with the intention of staying permanently in the US and adjusting status, that would be what they would interpret as misrepresentation.

Your situation is really really complicated. I strongly recommend that you hire a good immigration lawyer. You may have a fight on your hands. The good news is you may not have accumulated significant out of status time, and may not have a ten year bar on admission, since you have been admitted for 6 month periods as a Canadian tourist at least once every 6 months (hopefully!). Those multiple tourist admissions may end up saving your butt, as your lawyer may be able to represent that you have not been here illegally for 3.5 years, but have instead been a serial tourist, who simply happens to have a USC spouse, who's existence has simply happened to not have come up during any of the border crossings.

If you still had a home in Canada (unlikely), I would ordinarily recommend that the best, long term solution would probably be to move back up there temporarily and begin the process of applying for a spousal visa. Be aware though, you would have to remain in Canada for 8 months to a year to do this, but this would normalize your status and make everything nice and legal going forward. The problem with this plan is that if you have accumulated over 6 months of out of status days (which determination should be made by a lawyer, preferably with a second opinion) then leaving the US triggers a 3 year or 10 year ban on reentry. DO NOT, UNDER ANY CIRCUMSTANCES, LEAVE THE US AGAIN until you have found out FOR SURE about your out of status days. Each exit and reentry to the US carries the risk that your USC spouse will be mentioned, and they may just lock you out for an extended period of time (years to permanently).

At the moment you may effectively be an illegal immigrant, exactly as much as someone who walks in from Mexico through a PoE and disappears into the crowds, depending on how long it's been since your last border crossing, and how long you were admitted for.

I would strongly recommend against AOSing without talking to a (or several) lawyer(s). If you misrepresented yourself at the border, AOSing may be impossible. Because you were married to a USC, it will be very difficult for you to claim that you had no immigrant intention at your last border crossing. Furthermore, if you have significant out of status time, you may have a ten year bar on reentry coming if they become aware of you. If you do not have a bar against you, sneaking back out and staying in Canada while you do a proper IR-1 spousal visa would be the best bet, but do not try that until you are certain you do not have a bar against you.

You may also wish to begin the process of researching how to obtain Canadian PR status for your wife, Since you two live right on the border it may not make that big a difference to her which side of it you live on, and it may come to that. Your situation with US Immigration is, at the moment, VERY tangled, and untangling it could be a very long and difficult process.

Edited January 15, 2010 by HeatDeath

[DavidC 1]

This is a little outside my direct area of experience, so what you really want to be doing is searching this forum and reading anything relating to adjusting from a tourist visa.

Lots of people successfully adjust from a tourist visa. They come here on a tourist visa, having no intent to stay at the time they cross the border. They marry, and adjust status. As long as they had no intention of staying here permanently at the time they crossed the border, that's all fine. What complicates your situation immensely is the fact that you've been back and forth over the border a significant number of times since you got married, and that you had intent to stay at each time. What will count to USCIS, in terms of adjusting status, was your intention at the time of the most recent border crossing. If, at that time, you crossed the border with the intention of staying permanently in the US and adjusting status, that would be what they would interpret as misrepresentation.

Your situation is really really complicated. I strongly recommend that you hire a good immigration lawyer. You may have a fight on your hands. The good news is you may not have accumulated significant out of status time, and may not have a ten year bar on admission, since you have been admitted for 6 month periods as a Canadian tourist at least once every 6 months (hopefully!). Those multiple tourist admissions may end up saving your butt, as your lawyer may be able to represent that you have not been here illegally for 3.5 years, but have instead been a serial tourist, who simply happens to have a USC spouse, who's existence has simply happened to not have come up during any of the border crossings.

If you still had a home in Canada (unlikely), I would ordinarily recommend that the best, long term solution would probably be to move back up there temporarily and begin the process of applying for a spousal visa. Be aware though, you would have to remain in Canada for 8 months to a year to do this, but this would normalize your status and make everything nice and legal going forward. The problem with this plan is that if you have accumulated over 6 months of out of status days (which determination should be made by a lawyer, preferably with a second opinion) then leaving the US triggers a 3 year or 10 year ban on reentry. DO NOT, UNDER ANY CIRCUMSTANCES, LEAVE THE US AGAIN until you have found out FOR SURE about your out of status days. Each exit and reentry to the US carries the risk that your USC spouse will be mentioned, and they may just lock you out for an extended period of time (years to permanently).

At the moment you may effectively be an illegal immigrant, exactly as much as someone who walks in from Mexico through a PoE and disappears into the crowds, depending on how long it's been since your last border crossing, and how long you were admitted for.

I would strongly recommend against AOSing without talking to a (or several) lawyer(s). If you misrepresented yourself at the border, AOSing may be impossible. Because you were married to a USC, it will be very difficult for you to claim that you had no immigrant intention at your last border crossing. Furthermore, if you have significant out of status time, you may have a ten year bar on reentry coming if they become aware of you. If you do not have a bar against you, sneaking back out and staying in Canada while you do a proper IR-1 spousal visa would be the best bet, but do not try that until you are certain you do not have a bar against you.

You may also wish to begin the process of researching how to obtain Canadian PR status for your wife, Since you two live right on the border it may not make that big a difference to her which side of it you live on, and it may come to that. Your situation with US Immigration is, at the moment, VERY tangled, and untangling it could be a very long and difficult process.

That is really scary, I guess the only thing I can hope on is that fact that I haven't been to Canada since we've been married. It sounds like that makes a major difference...

[HeatDeath 430]

So you entered as a tourist sometime prior to September 2008, married a USC, and stayed. You have not left the US since.

Well that simplifies several things, but complicates others.

You now have at least 6 months, and getting very close to a year of out-of-status time, possibly more. That means if you leave the US, you will incur a 3 year bar to reentry. If your out of status time is over a year, that's a ten year bar to reentry.

DO NOT LEAVE THE US!

When you entered the US on a tourist visa, you did have intention of staying. Depending on the precise words that were spoken between you and the customs officer, you may or may not have misrepresented yourself. Certainly you allowed him/her to form a false impression of you as a Canadian tourist. That may or may not be surmountable at the AOS interview.

Someone who's posts you should read is Just Bob. His avatar looks like a weird troll baby. His situation is fairly similar to yours: entered on a tourist visa, stayed for years, married a USC. He was able to successfully adjust status and is fine now. A good start might be reading every post he's ever made

I'm pretty sure he did his AOS with a lawyer's assistance. And so should you. Your situation is very tenuous. Don't even think of trying to do this on your own.

You might want to start a new thread in the appropriate forum seeking out advice and recommendations on lawyers. Immigration law is the same all over the US. Better an experienced lawyer in another state than an immigration newbie who just happens to be local to you. You need some serious help at this point.

[DavidC 1]

I can't thank you enough for taking the time to reply HeatDeath, i'm going to be reading Bob's posts. The problem with lawyers is they cost a lot of money which I just don't have at the moment, after a lot more research hopefully i'll be able to get through this or find a lawyer that offers financing.

Thank you!

[Brother Hesekiel 2,236]

David,

thanks for your P.M. I hope it's okay with you if I respond publically, since it is a bit longer than a P.M will allow.

First of all, I'm not sure if I understand your situation correctly, so please correct me if I got something wrong. To make it easier for both of us, I use a list format with numerical numbers.

1) As a Canadian citizen, you crossed the border many times, inspected (meaning you didn't sneak in), yet without having received an I-94 ever.

It is "normal" for Canadian citizens to enter without the I-94. Although not part of the VWP, Canadians are in the unique position to be allowed to "visit" up to 6 months without a problem.

2) You married your USC wife a little over a year ago.

That's fine, as there's nothing that would prohibit a visitor, a tourist, from getting married in the US. You have not adjusted status yet, so nobody could even accuse you of premeditated entering-->getting married-->adjusting status. So far it's all good and dandy.

3) Now you want to adjust status . . . eventually.

Understand that that's not a problem, as you don't even know when . . . yet. Since you've been visiting the US quite frequently as you lived in such a close proximity to the border, I still don't see a problem, as long as you don't plan "doing it" beforehand.

More to the point, even if you did that, and it would be visa fraud by the pure letter, the practice has shown, over and over and over again, that none of this will become an issue at AOS. In real life, the Immigration Officer is mostly concerned with the paperwork and that the marriage is legit. I have not yet heard of a case where a spouse is grilled about this.

Which brings us to the only caveat I personally see. If you overstayed the 6-months by 180 days . . . ever, and left you'd automatically have triggered the 3-year ban, preventing you from entering again. If, and only if you did, please don't post it here, as I for the time being assume you didn't as you did enter again. Everything else I will answer in a P.M. now.

Edited January 15, 2010 by Just Bob

[DavidC 1]

Thank you so much for responding!

1) Yes

2) Yes

3) This is where i'm at right now, i'm starting off from 0, i've enter with a B1/B2 and i'd like to start my AOS after a little over a year of marriage. Without an I-94 i'm not sure what my first step should be.

Edited January 15, 2010 by DavidC

[acec 0]

Thank you so much for responding!

1) Yes

2) Yes

3) This is where i'm at right now, i'm starting off from 0, i've enter with a B1/B2 and i'd like to start my AOS after a little over a year of marriage. Without an I-94 i'm not sure what my first step should be.

Hey,

Please keep me in the loop!!

I am doing the same thing and am wondering how to go about this without an i-94. My difference is that we were married in the middle of last year. I never exceeded the 6 months as I have gone back to Canada. I have just returned for a visit without any issues. This 2 week visit may now be longer because after getting immigration info we are now going to be filing our paperwork from here.

[trailmix 77]

Everything else I will answer in a P.M. now.

What happens if he does get questioned about his intent when crossing the border the last time he entered the U.S.? What if his answer is that he intended to immigrate?

Edited January 15, 2010 by trailmix

[Bobby+Umit 161]

What happens if he does get questioned about his intent when crossing the border the last time he entered the U.S.? What if his answer is that he intended to immigrate?

Shouldn't matter much - he is marrying an USC - a good lawyer would be able to navigate him through the AOS.

Case law in the FAM

Matter of Cavazos , 17 I. & N. Dec. 215 (BIA, 1980) . In the absence of other adverse factors, an application for adjustment by an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered as a nonimmigrant with a preconceived intention to remain.

As long as he doesn't leave the US, the overstay will not affect him (the bar only triggers upon re-entry to the US).

Key thing is he entered with inspection. (usually, having the I-94 as proof is good enough, but since he is Canadian, ...)

(even working without an EAD is not a bar for AOS)

Plenty of people here have had success in doing an AOS.

As long as he doesn't have any other adverse factors - he should be fine.

Consult with a lawyer to cover your P's and Q's.

[trailmix 77]

Yes I agree with you on the above, pretty much. The thing I don't know - well we don't know - is what was said at that inspection when he entered the country.

I'm not an advocate for 'no AOS' - i'm just an advocate for giving the OP ALL the possible outcomes.

All persons traveling to the U.S. as visitors or students, Canadian or other nationality, under U.S. law are deemed to be intending immigrants and thus inadmissible for temporary purposes until they have an immigrant visa in hand. The burden of qualifying for any visa for entry to the U.S. rests solely with the applicant. Entry to the U.S. is solely up to a Department of Homeland Security/Customs and Border Protection (DHS/CBP) officer at the Port of Entry. While intending immigrants may have and lawfully seek to exercise a dual intent to be a visitor or student now and an immigrant later, it is against U.S. law to enter the U.S. as a visitor or student with the intent to wait for or seek immigrant status while in the U.S. Anyone who attempts to enter the U.S. by misrepresentation, or unlawfully, may face severe sanctions up to and including permanent ineligibility to enter the U.S. link

Edited January 15, 2010 by trailmix

[acec 0]

Yes I agree with you on the above, pretty much. The thing I don't know - well we don't know - is what was said at that inspection when he entered the country.

I'm not an advocate for 'no AOS' - i'm just an advocate for giving the OP ALL the possible outcomes.

I am in a very similar situation. When I crossed the CBP didn't ask me anything about my trip or me, just when I was coming back. Is that going to be a problem?

[Bobby+Umit 161]

Yes I agree with you on the above, pretty much. The thing I don't know - well we don't know - is what was said at that inspection when he entered the country.

I'm not an advocate for 'no AOS' - i'm just an advocate for giving the OP ALL the possible outcomes.

All persons traveling to the U.S. as visitors or students, Canadian or other nationality, under U.S. law are deemed to be intending immigrants and thus inadmissible for temporary purposes until they have an immigrant visa in hand. The burden of qualifying for any visa for entry to the U.S. rests solely with the applicant. Entry to the U.S. is solely up to a Department of Homeland Security/Customs and Border Protection (DHS/CBP) officer at the Port of Entry. While intending immigrants may have and lawfully seek to exercise a dual intent to be a visitor or student now and an immigrant later, it is against U.S. law to enter the U.S. as a visitor or student with the intent to wait for or seek immigrant status while in the U.S. Anyone who attempts to enter the U.S. by misrepresentation, or unlawfully, may face severe sanctions up to and including permanent ineligibility to enter the U.S. link

Yes - I believe that would fall under the 'adverse factors' they mention (if the conversation is adverse that is...)